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Proposition 65 Notices of Violation Issued for BPA

In two separate 60-day notices of violation, the Center for Environmental Health has staked its position as the leader in pursuing Proposition 65 claims involving bisphenol A (BPA). One notice (amended on June 27, 2016), sent to Del Taco Restaurants, involves BPA in thermal receipt paper. It alleges exposures through dermal absorption and through hand-to-mouth contact. The other, directed to DS Services of America and Home Depot U.S.A, alleges exposure to BPA in bottled water for use in water coolers, with direct ingestion as the “primary” route of exposure.

The California Office of Environmental Health Hazard Assessment listed BPA as a reproductive toxicant on May 11, 2015, which meant that the warning requirement went into effect May 11, 2016. More recently, OEHHA finalized a Maximum Acceptable Dose Level (MADL) for BPA of 3 micrograms per day for exposures through the dermal route only. That MADL formally goes into effect on October 1, 2016. OEHHA has not yet established a MADL for BPA exposures via the oral route, which means that affected businesses will have to invest the substantial resources necessary to develop one themselves. OEHHA’s continuing delay in developing a MADL for the oral route of exposure adds to the overall uncertainty businesses face in determining  whether to provide warnings for BPA, and ultimately encourages Proposition 65 private enforcers to pursue claims.

These notices, issued so soon after the Proposition 65 warning requirement went into effect, likely presages a larger wave of BPA-related notices to come. Businesses should examine the products and services they offer in California (including the receipt paper they use) and determine whether Proposition 65 warnings should be provided.

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.